Today the SNP Government’s major childcare policy often known as the “named person” system was rejected in part by the UK Supreme Court, who found that some sections of the law were “incompatible” with the European Convention on Human Rights (ECHR).
News reporting of the issue so far has been incredibly sketchy and very few people have been able to accurately portray what the Supreme Court ruling actually means. Here’s a few tweets though that sum up the situation very well from Andrew Tickell, a law professor at the University of Glasgow:
But interferences with rights must be "according to law" & the law must be clear. The Court says it isn't clear enough yet. Hence unlawful.
— PeatWorrier (@PeatWorrier) July 28, 2016
The implications? Named Persons can be rolled out, but the SG needs to revisit the rules to make them tighter & clearer to satisfy the ECHR.
— PeatWorrier (@PeatWorrier) July 28, 2016
Essentially, the way in which information is shared about a child without permission is not clear, and as such it can’t be put into law as it interferes with the child and the parents’ right to privacy and family life under ECHR.
Politically speaking (and to use a paraphrased Kenny Rogers reference) everyone’s a winner and everyone’s a loser.
For the SNP, their Act has been found by-and-large to be lawful and will eventually go ahead, just with a few modifications and clarifications.
For the opposition, mainly the Conservatives, it’s a victory because the SNP will need to go back to the drawing board and rethink their plans – which not only allows them to paint the SNP Government as anti-civil liberties but also means that there is now the chance that a Parliamentary vote could override any plans the SNP have seeing as they no longer have the majority had when the Act first passed.
As someone who has serious doubt about the named person scheme, I think today’s ruling is one that manages to find the best of both worlds and will hopefully result in the best possible result for the children of Scotland.
The driving ambition behind the law is to protect vulnerable children who are currently being failed by elements of the welfare and social work administrations – and I can’t imagine anyone would disagree that as an aim it’s a pretty good one.
The problem though is that by enforcing a policy of a person outwith a family being given a level of control and power in the raising of a child, it upsets the balance of family life in an unsettling way. The “named person” would be assigned for every child, under the SNP’s plans, and would typically be a teacher or social worker. To put it another way, a representative of the state would be assigned for every child in the country to oversee what they believe is the child’s interest.
No-one should realistically suggest that this would create the slippery-slope the SNP needs to create a massive authoritarian Big Brother regime in Scotland, but it does stray over a line where I, and many others, feel the Government should not cross.
For me, “named person” should be appointed in situations where indicators suggest that a child could be in danger of not being looked after properly at home. This way means that social services can be more proactive about engaging with families in the community and identifying problem areas before any danger occurs, but still means that where there are no reasons to believe a family would run into any difficulties they will be left alone.
The devil lies in the detail now with how the SNP Government, and those in Parliament who now have the chance to overrule the Act, proceeds with amending the information sharing.
In a wider sense, what today’s ruling shows is that the SNP Government of 2011-2016 did, in a sense, have too much power. They managed to pass a law that went unopposed in the final vote 101-0 that was eventually ruled unfit, with little meaningful scrutiny in the committee or parliamentary stages because the opposition did not have the means to fight back.
That’s why having a minority of coalition Government in power at the Scottish Parliament is a good thing (which is why I didn’t vote for the SNP on the list back in May).
Ideally, there would be a stronger committee structure or even a second chamber to provide proper checks and balances to legislation, but with no plans in place and no real appetite from either the UK or Scottish Governments to set the wheels in motion for such a plan, it’ll be a long time before something like that happens.
For now, it’s back to the drawing board for the SNP Government’s named person law. It’s their responsibility now to put forward a law that not only clears the not insignificant hurdle of being approved at Holyrood, but more importantly delivers proper childcare for the young people of Scotland.
For the first time since 2011, the SNP are beginning to feel the pressure of being a minority Government again.